An Employer’s Defence to Harassment ClaimsPublished on: 10 February 2021
For the purposes of the Equality Act 2010 anything done by an employee in the course of their employment is treated as having also been done by the employer. This means that an employer can be liable for harassment when an employee harasses another employee and this is the case whether or not the harassment is done with the employer's knowledge or approval.
There is a defence available to an employer if it can show that it had taken all reasonable steps to prevent the harassment. Such steps are often found to include relevant training for employees and also having suitable policies in place. When considering such a defence put forward by an employer, an employment tribunal will consider the steps that have been taken by the employer and whether further reasonable steps were required.
In a recent appeal heard in the Employment Appeal Tribunal (EAT) on this subject, the EAT agreed with an employment tribunal (who had heard the case first) that the training undertaken by the employer was not sufficient to show that all reasonable steps had been taken and therefore the employer could not avoid liability for its employee’s actions.
The tribunal had found that the anti-harassment, bullying, equality and diversity training which had been delivered to the perpetrator of race harassment and other relevant employees (including two managers who failed to report matters to HR), was several years before the events in question and was clearly stale and, further, it did not accept that the employer had taken all reasonable steps to avoid discrimination in the workplace because a reasonable step would have been to refresh that training. Agreeing, the EAT said that the employment tribunal was entitled to make this conclusion.
What Does This Mean for Employers?
This case shows that employers who do not undertake meaningful and effective anti-harassment and bullying and equal opportunities training on a regular basis are at risk of being found liable for the actions of their employees.
It is also important that employers have in place well drafted anti-harassment and bullying and equal opportunities policies. If these policies are already in place, they should be reviewed to ensure they are up to date and that all members of staff are aware of them.
There are other important benefits to taking these steps than ultimately defending claims. Appropriate policies and training helps promote an inclusive workforce and avoid actions that can give rise to grievances and/or claims; and if there is nevertheless harassment or otherwise unlawful discrimination, they will make it more likely that concerns are properly reported and addressed.